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Familylaw@Alrc.Gov.Au 3 C/O The Executive Director Australian Law Reform Commission GPO Box 3708 Sydney NSW 2001 Email: [email protected] 3 May 2018 Dear Professor Rhoades The Australian Bar Association (ABA) is the peak body representing nearly 6000 barristers throughout Australia. Established in 1963, the ABA is committed to serving our members, improving our profession, and promoting the rule of law and the effective administration of justice. The ABA appreciates the opportunity to respond to the Australian Law Reform Commission Issues Paper (the Issues Paper) as part of its review of the family law system. A draft of the submission by the Family Law Section of the Law Council of Australia (LCA) was shared with the ABA and we support the LCA responses as viewed. In addition, the ABA provides the following barrister-specific observations, prepared by our Family Law Committee and approved by the ABA Executive. Given the ABA supports the LCA submission, this ABA submission only addresses four topics: 1. Case management; 2. Costs orders; 3. Family consultants; 4. Use of the terms ‘adversarial’ and ‘inquisitorial’. Yours sincerely Noel Hutley SC President 1 ABA response to the ALRC Review of the Family Law System Issues Paper May 2018 SECTION ONE: CASE MANAGEMENT 1. This section addresses a number of the questions posed, for example, but not limited to Question 20 of the Issues Paper: “What changes to Court processes could be made to facilitate the timely and cost-effective resolution of Family Law disputes”. This is a question that has been considered and addressed many times before. Any comprehensive response to this question must involve discussion of the family law system, the history of the system, and include the structure of the court system and case management. A number of the questions in the Issues Paper relate to changes that could be made to the family law system. 2. Subsequent to January 1976 the Family Court struggled with identifying appropriate court processes that would facilitate the timely and cost effective resolution of family law disputes; there were criticisms.1 From 1976 until the Children’s Cases Program in 2004 the Family Court introduced a number of significant changes to its procedures, ranging from the introduction (and subsequent removal) of pleadings, the introduction and development of case management guidelines, differential case management, the special management of complex cases and trial management of child abuse cases.2 3. Prior to 2004 the Family Court undertook significant periodic reviews of court processes and ways of facilitating the timely and cost-effective resolution of family law disputes. A number of reports were produced.3 Research for these reports included consultations with judges, members of the legal profession, court staff and various organisations. From time to time, external consultants were engaged.4 4. In the Foreword to the July 2000 Future Directions Report, the then Chief Justice wrote: The Family Court continues to lead the way in many areas of case management, judicial administration, integrated dispute resolution, judicial education and programs that target services to sections of the community with special needs. 1 For example, see Practical Evidence, Mr Justice PW Young, Affidavits (1992) ALJ 163 and 298. 2 For a summary of Family Court procedural reforms see Finding a Better Way, Family Court of Australia, April 2007 by Margaret Harrison at pp 18-24. 3 Report of the Committee on Standardisation of Practices and Procedures, July 1985; first Report of the Simplification of Procedures Committee, November 1993; second Report of the Simplification of Procedures Committee, May 1994; report of the Evaluation of Simplified Procedures Committee, August 1997; report of the Future Directions Committee, July 2000; and Every Picture Tells a Story report, December 2003. 4 For example, Professor Ian Scott, Justice Martin Moynihan of the Supreme Court of Queensland, and Mr Tony Lansdell of KPMG were consultants to the Future Directions Committee. 2 The Chief Justice also observed that the Family Court stood “as the envy of most international family law jurisdictions”.5 5. The following was said of the Case Management System in the Family Court July 2000 Future Directions Report: Over more than 24 years and through a number of iterations, the Family Court has developed a sophisticated case management system that has largely met the needs of the Court and its clients. … The present system of differential case management involves case management by category – by type of relief (summary, interim, cause of action) and by estimated potential hearing time. It is similar to the systems that have developed in North American Courts and more recently, through the Lord Woolf reforms in the English Courts. The system has considerable advantages over the first generation of case management systems because in a high-volume Court it is not possible to give individual judicial attention to every case. Differential case management permits large numbers of cases to receive attention (the number, type and timing of events) referable to the needs and characteristics of similar cases. … The importance of the work of the Family Court to Australian families the resource constraints on the Court and the commitment of judges and staff to the professional delivery of accessible, high quality and timely services, call for the exploration of every possible improvement 6 6. Since 2000, the family law system has changed significantly. The Federal Circuit Court of Australia (“FCC”) (formerly known as the Federal Magistrates Court of Australia, “FMC”) was established on 23 December 1999 as a result of Royal Assent of the Federal Magistrates Act 1999 (Cth). Its first judicial officers were appointed in 2000; the first applications were filed on 23 June 2000 and the Court’s first sittings were conducted on 3 July 2000. The Court was created to deal with the increasing workload of the Federal Court of Australia and the Family Court by hearing less complex cases. Now, the FCC deals with nearly 80 per cent of all family law matters filed in the federal courts. 7. Unfortunately, the FMC and then the FCC did not adopt many of the experiences and achievements of the Family Court. For example, unlike in the Family Court, the FMC then FCC requires the filing of an affidavit contemporaneously with the filing of an Initiating Application7 and thus there is sequential, as opposed to contemporaneous, filing of affidavits of the parties. The pre-action procedures set out in a Schedule to the Act only apply in the Family Court but not the FCC and there is no equivalent in the FCC Rules. Further, the FMC/FCC has not embraced the Children’s Cases Programme.8 The 5 Family Court of Australia, Future Directions Report, July 2000, p.2. 6 Family Court of Australia, Future Directions Report, July 2000, pp.29-30. 7 Rule 4.05 Federal Circuit Court Rules. 8 Prof Patrick Parkinson AM in an address Can There Ever Be Affordable Family Law?, Current Legal Issues Seminar, Supreme Court of Queensland, Brisbane, 9th May 2017, referred to the Children’s Cases Program as a great initiative and observed that it was never embraced by the Federal Magistrates Court “which took over more and more of the basic trial load in cases where that program was likely to be most efficacious.” 3 FMC/FCC also has a docket system of case management, whereas the Family Court does not (at least in the way it operates in the FCC).9 8. Consideration of Court processes in relation to the resolution of family law disputes must involve extensive consultation with judges, lawyers, stakeholders and others, as well as research and the professional consideration of case management and the application and management of judicial time. Professor Patrick Parkinson has observed that an “area for reform is in relation to trial processes and that the family law system, once in the vanguard of innovation in civil justice, has now fallen behind best practice ..”.10 In 1999 Sir Anthony Mason said: “There must be a dedicated commitment to case management and a will to achieve the benefits which it can bring”.11 He also observed: “There is a need for continuous data collection and monitoring of Court performance. Without continuous data collection and monitoring of performance the Courts cannot meet legitimate demands as and when they may arise.” 12 9. The models of case management used in both courts, particularly in the FCC, feature multiple court events such as mentions, directions hearings and more mentions. This presents particular problems for parties whose legal costs are increased by multiple Court events. If a court events adds value to a matter by determining substantive matters, or progresses a matter to finalisation, then that court event adds value to the parties and puts them further along the path of resolution. However, simple mentions of the matter, does not. Multiple court events may be necessary in complex matters but not for the majority of matters that are dealt with in the FCC. 10. Further, when a party to proceedings files an Initiating Application, in the FCC, and that Application also seeks interim orders, there is uncertainty (due to different listing practices) as to whether or not that interim application will be determined on its first return date. That said, the ABA does not argue that each application must be determined on its first return date. Rather, what we urge is certainty: that is, each litigant should know whether or not their application for interim orders will be listed for determination on the first return date, or some later date. Certainty saves costs – if it is known in advance that the application is to be heard on the first return, then Counsel can be engaged, and the matter prepared accordingly.
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